[Federal Register Volume 65, Number 197 (Wednesday, October 11, 2000)]
[Rules and Regulations]
[Pages 60379-60382]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-25387]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 90

[PR Docket No. 93-144; FCC 00-288]


Rules To Facilitate Future Development of SMR Systems in the 800 
MHz Frequency Band

AGENCY: Federal Communications Commission.

ACTION: Final rule; compliance deadline requirement.

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SUMMARY: In this document, the Commission sets forth the construction 
requirements that the Commission will impose on incumbent 800 MHz 
Specialized Mobile Radio (SMR) commercial licensees operating wide area 
systems that include Business and Industrial/Land Transportation (BI/
LT) channels obtained prior to 1995 through inter-category sharing. 
This action is taken in light of the Commission's Memorandum Opinion 
and Order on Remand (Remand Order) and the appellate court decision, 
Fresno Mobile Radio, Inc. v. FCC (Fresno). We will allow incumbent 
wide-area 800 MHz SMR licensees using BI/LT channels an analogous 
construction period as we allowed eligible licensees of the Remand 
Order provided that such eligible licensees satisfy the conditions 
described herein and provide the requisite certification to the 
Commission.

DATES: Effective October 11, 2000. Incumbent wide-area licensees must 
file certifications of construction within fifteen (15) days after the 
licensee's applicable construction deadline or December 11, 2000, 
whichever is later.

FOR FURTHER INFORMATION CONTACT: Chris Gacek, Wireless 
Telecommunications Bureau, at (202) 418-1743; for additional 
information concerning the information collections contained in this 
document contact Judy Boley at (202) 418-0214, or via the Internet at 
[email protected].

SUPPLEMENTARY INFORMATION: This Memorandum Opinion & Order (MO&O) in PR 
Docket No. 93-144, adopted August 2, 2000, and released August 4, 2000, 
is available for inspection and copying during normal business hours in 
the FCC Reference Center, 445 Twelfth Street, S.W., Washington D.C. The 
complete text may be purchased from the Commission's copy contractor, 
International Transcription Service, Inc., 1231 20th Street, N.W., 
Washington D.C. 20036 (202) 857-3800. The document is also available 
via the internet at: http://www.fcc.gov/Bureaus/Wireless/Orders/2000/fcc00288.doc.

Synopsis of Memorandum Opinion and Order

I. Introduction

    In this Memorandum Opinion and Order (MO&O), we set forth the 
construction requirements that the Commission will impose on incumbent 
800 MHz Specialized Mobile Radio (SMR) commercial licensees operating 
wide area systems that include Business and Industrial/Land 
Transportation (BI/LT) channels obtained prior to 1995 through inter-
category sharing. This action is taken in light of the Commission's 
decision in its Memorandum Opinion and Order on Remand (Remand Order), 
14 FCC Rcd. 21679 (1999), published 65 FR 7751 (Feb. 16, 2000), which 
responded to the decision of the U.S. Court of Appeals for the District 
of Columbia Circuit (Court) in Fresno Mobile Radio, Inc. v. FCC 
(Fresno), 165 F.3d 965 (D.C. Cir. 1999). Incumbent wide-area licensees 
must file certifications of construction within fifteen (15) days after 
the licensee's applicable construction deadline or December 11, 2000, 
whichever is later.

II. Summary of the Memorandum Opinion and Order

A. Background
    The 800 MHz band is divided into four channel groups--SMR, General 
Category, BI/LT, and Public Safety, each with its own eligibility 
rules. 800 MHz SMR channels are designated for commercial use, while 
800 MHz BI/LT channels are designated for non-commercial internal use 
by the licensee. Prior to 1995, in certain circumstances, the 
Commission allowed SMR licensees to apply for BI/LT channels under 
inter-category sharing rules, which the SMR licensee could then use 
commercially

[[Page 60380]]

despite the eligibility criteria that otherwise reserved these channels 
for private internal use. Inter-category sharing by SMR licensees was 
permitted if the BI/LT channel sought by the SMR licensee was 
unoccupied and if there were no SMR channels available in the 
licensee's service area.
    On December 23, 1999, in response to a remand of its 800 MHz SMR 
Reconsideration Order, 12 FCC Rcd. 9972 (1997), published at 62 FR 
41225 (July 31, 1997), by the District of Columbia Circuit in Fresno, 
the Commission released its Remand Order determining that incumbent 800 
MHz SMR licensees who had obtained extended implementation (``EI'') 
authority to build wide-area systems and who were within their extended 
construction periods at the time of the Fresno decision could apply 
construction requirements similar to those given to SMR Economic Area 
(``EA'') licensees in the 800 MHz band. In the Remand Order, however, 
we granted relief only to wide-area incumbents operating on SMR 
channels. We did not address the construction status of wide-area 
incumbents operating on non-SMR channels obtained through inter-
category sharing, because we concluded that this issue was beyond the 
scope of the proceeding. We indicated that we would determine the 
construction requirements for wide-area licensees on these channels in 
WT Docket No. 99-87, the pending Balanced Budget Act (BBA) proceeding.
    Upon further reflection, the Commission decided to determine the 
construction status of BI/LT channels used by wide-area 800 MHz SMR 
licensees in this proceeding which responds to the court's action in 
Fresno, rather than in the BBA proceeding. On March 2, 2000, therefore, 
we released a Public Notice seeking comment on whether we should adopt 
construction rules for wide-area incumbent 800 MHz SMR licensees using 
BI/LT channels that would be similar to those adopted in the Remand 
Order for wide-area SMR licensees using SMR channels. We also requested 
comment on the applicable construction requirements (e.g., substantial 
service or population-based) for wide-area incumbent 800 MHz SMR 
licenses using BI/LT channels.
    In response to that Public Notice, we received four comments and 
one reply comment. All but one of the commenters contend that wide-area 
800 MHz SMR licenses using BI/LT channels should receive the same 
construction requirements established by the Remand Order for wide-area 
incumbents using SMR channels. Nextel Communications, Inc. (Nextel) and 
Southern Communications (Southern) maintain that regulatory parity 
requires giving wide-area 800 MHz SMR licenses using BI/LT channels the 
same flexible construction requirements as those given to other CMRS 
providers because they provide similar services. The American Mobile 
Telecommunication Association, Inc. (AMTA) maintains that all channels 
properly licensed to a wide-area SMR system under the Commission's 
rules are part of that system and should be subject to the same 
regulatory treatment.
B. Discussion
    We conclude that wide-area incumbent 800 MHz SMR licensees 
operating on BI/LT channels are sufficiently similar to wide-area 
incumbent 800 MHz licensees operating on SMR channels that they should 
have the same flexibility with respect to construction requirements. 
The record demonstrates that some of the wide-area SMR licensees who 
received EI authorizations from the Commission are licensed to operate 
both on SMR channels and on BI/LT channels that they obtained through 
inter-category sharing for commercial use. In Southern's case, the vast 
majority of channels in its wide-area SMR system are BI/LT channels 
obtained through inter-category sharing. The record further 
demonstrates that wide-area SMR licensees such as Southern use inter-
category BI/LT channels interchangeably with SMR channels, and that the 
BI/LT channels licensed on this basis are used to provide service that 
is similar, if not identical, to that provided on SMR channels by 800 
MHz EA and incumbent wide-area SMR licensees. Accordingly, we agree 
with Southern, AMTA, and other supporting commenters that wide-area 800 
MHz SMR licensees using BI/LT channels should be subject to the same 
construction requirements given to 800 MHz SMR EA licensees by our 
rules and to eligible wide-area SMR licensees by our Remand Order.
    Recognizing that these licensees may already have constructed their 
systems in accordance with the requirements in place at the time (i.e., 
site-by-site, channel-by-channel), we will give eligible wide-area 800 
MHz SMR licenses using BI/LT channels the option of complying with the 
site-specific construction requirements associated with their EI 
authorizations or applying the EA population coverage requirements to 
their wide-area systems. This option applies only to wide-area 800 MHz 
SMR licensees using BI/LT channels obtained through inter-category 
sharing. We believe that giving wide-area 800 MHz SMR licenses using 
BI/LT channels the choice between applying site-specific requirements 
or the EA coverage requirements will establish regulatory parity among 
all similarly situated wide-area 800 MHz SMR licensees.
    We did not receive any comment on when the five-year construction 
period should begin for BI/LT channels licensed to wide-area SMR 
licensees that elect to apply the EA construction requirements. We 
therefore adopt the framework outlined in the Remand Order, which 
begins the construction period from the licensee's EI grant date. 
Therefore, an eligible wide-area SMR licensee that elects to apply the 
EA construction requirements to its BI/LT channels must have 
constructed and placed into operation a sufficient number of base 
stations to provide coverage to at least two-thirds of the population 
of its wide-area system, or must provide substantial service to the 
licensed area, within five years of EI grant plus the tolling period 
described.
    For all licensees entitled to relief under this decision, we will 
add 546 days to their construction periods, representing the amount of 
time between the Fresno decision and the release of this order. 
Therefore, the applicable construction deadline for any eligible wide-
area licensee that elects to apply the EA coverage requirements will be 
five years from the date of EI grant plus 546 days. Likewise, the 
applicable construction deadline for eligible licensees that do not 
elect the EA requirements will be 546 days after the EI deadline 
established in the 800 MHz Rejustification Orders, 13 FCC Rcd. 1533 
(WTB: 1997), recon., 12 FCC Rcd. 18349 (WTB: 1997).
    A wide-area SMR licensee that is eligible for relief under this 
Order must certify in a filing with the Bureau that it has either met 
the EA construction requirements, as set out herein, or complied with 
the terms of its EI authorization. In addition to the certification, if 
a licensee chooses to meet the EA requirements for channels in the 
lower 230 channels using the substantial service option, it must 
demonstrate in the same filing with the Bureau how it is providing 
substantial service. All filings must be made within fifteen (15) days 
after the licensee's applicable construction deadline, as defined 
supra, or December 11, 2000, whichever is later.
    When determining if an eligible licensee has met a specific 
coverage requirement (i.e., covering two-thirds of the population), the 
population should be measured using the licensee's wide-area 
``footprint'' as established in the

[[Page 60381]]

licensee's EI rejustification submission. For this purpose, we adopt 
the guidelines in the Remand Order, i.e., the licensee should compute 
the population covered within its footprint on a county basis using 
1990 U.S. Census information. In cases in which the footprint does not 
align with county boundaries, the licensee should include the entire 
population of the county if the licensee covers any portion of it.

III. Conclusion

    For the reasons given above, any incumbent wide-area 800 MHz SMR 
licensee that uses BI/LT channels obtained through inter-category 
sharing and was still in its construction period as of the date of the 
Fresno decision may choose to apply either the existing site-by-site, 
channel-by-channel construction requirements or the alternative 
construction requirements set forth in this MO&O. Eligible licensees 
must certify in a filing with the Commission their compliance with one 
of the enumerated requirements within the later of fifteen days from 
their applicable construction benchmarks, as defined herein, or 
December 11, 2000.

IV. Procedural Matters

Paperwork Reduction Act of 1995 Analysis
    Supplementary Information: This MO&O contains a modified 
information collection, which has been submitted to the Office of 
Management and Budget for approval. As part of our continuing effort to 
reduce paperwork burdens, we invite the general public to take this 
opportunity to comment on the information collection contained in this 
MO&O, as required by the Paperwork Reduction Act of 1995, Public Law 
104-13. Public comments should be submitted to OMB and the Commission, 
and are due November 13, 2000. Comments should address: (a) Whether the 
proposed collection of information is necessary for the proper 
performance of the functions of the Commission, including whether the 
information shall have practical utility; (b) the accuracy of the 
Commission's burden estimates; (c) ways to enhance the quality, 
utility, and clarity of the information collected; and (d) ways to 
minimize the burden of the collection of information on the 
respondents, including the use of automated collection techniques or 
other forms of information technology.
    OMB Approval Number: 3060-0307.
    Title: Rules to Facilitate Future Development of SMR Systems in the 
800 MHz Frequency Band.
    Form No.: N/A.
    Type of Review: Revision of a currently approved collection.
    Respondents: Business or other for-profit.
    Number of Respondents: 15.
    Estimated Time Per Response: 2 hours.
    Total Annual Burden: 30 hours.
    Frequency of Response: Single response.
    Total Annual Estimated Costs: $6,000. This cost includes an 
estimate that 100% of the respondents will hire an outside consultant 
at $200 per hour to prepare the information.
    Needs and Uses: The Commission will use this information to 
determine whether wide-area SMR licensees have complied with the 
Commission's 800 MHz construction requirements for their respective 
systems.
    Address: In addition to filing comments with the Secretary, a copy 
of any comments on the information collections contained herein should 
be submitted to Judy Boley, Federal Communications Commission, Room 1-
C804, 445 12th Street, S.W., Washington, D.C. 20554, or via the 
Internet to [email protected]; and to Timothy Fain, OMB Desk Officer, 
10236 NEOB, 725-17th Street, N.W., Washington, D.C. 20503 or via the 
Internet to [email protected].
Regulatory Flexibility Act
    The order, adopted by the Commission on August 17, 2000, contained 
a Supplemental Final Regulatory Flexibility Analysis that is now being 
retracted. As part of this submission we are including a Final 
Regulatory Flexibility Act Certification in its place. The Regulatory 
Flexibility Act (RFA) requires that an agency prepare a regulatory 
flexibility analysis for notice and comment rulemakings, unless the 
agency certifies that ``the rule will not, if promulgated, have a 
significant economic impact on a substantial number of small 
entities.'' \1\ The RFA directs agencies to provide a description of 
and, where feasible, an estimate of the number of small entities that 
may be affected by our rules.\2\ The RFA generally defines the term 
``small entity'' as having the same meaning as the terms ``small 
business,'' ``small organization,'' and ``small governmental 
jurisdiction.'' In addition, the term ``small business'' has the same 
meaning as the term ``small business concern'' under the Small Business 
Act. A small business concern is one which: (1) Is independently owned 
and operated; (2) is not dominant in its field of operation; and (3) 
satisfies any additional criteria established by the Small Business 
Administration (SBA). A small organization is generally ``any not-for-
profit enterprise which is independently owned and operated and is not 
dominant in its field.'' \3\ More specifically the Commission has used 
the term ``small business'' in the wireless auction context as an 
entity that, together with its affiliates and controlling principals, 
has average gross revenues not exceeding $15 million for the preceding 
three years.
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    \1\ 5 U.S.C. 605(b).
    \2\ 5 U.S.C. 603(b)(3).
    \3\ 5 U.S.C. 601(4).
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    We certify that this memorandum opinion and order (MO&O) will not 
have a significant economic impact on a substantial number of small 
business entities for the following reasons. First, the direct effect 
of this MO&O is to give eligible wide-area 800 MHz SMR licensees using 
BI/LT channels through inter-category sharing the option of complying 
with the site-specific construction requirements originally given with 
their EI authorizations or of complying with the more liberal EA 
population coverage requirements. For any small entity that would be 
able to exercise this new option as its buildout requirement, we 
believe there would be no detrimental impact or economic cost. In 
actuality, there might be a positive benefit to the licensees in this 
category in that small entities might find it easier to satisfy the 
buildout requirements.
    Second, of the nine licensees directly effected by this order, 
three belong to extremely large corporations. Of the remaining six, all 
or none could be small business entities, our data do not permit a more 
accurate estimate at this time. However, as noted above, we believe 
that they will not experience a significant economic impact as a result 
of the revisions set forth in this MO&O.
    Third, any indirect effects of this decision will be minimal. 
Currently, Commission rules do not allow the commercial use of BI/LT 
channels. The directly effected parties, mentioned above, obtained 
their BI/LT channels prior to 1995. Therefore, they are allowed to use 
those channels commercially. However, since 1995 users of newly 
available BI/LT channels are restricted to private mobile service use--
that is, a non-commercial, non-business use. Consequently, even though 
the more liberalized build-out requirement adopted in this MO&O may 
lead to fewer channels reverting to the BI/LT channel pool because the 
licensees failed to timely construct, there will be no impact on small 
business entities because any such

[[Page 60382]]

reversionary channels could not be licensed for commercial purposes.
    Accordingly, we certify, pursuant to Section 605(b) of the RFA, 
that any effects flowing from this MO&O will not have a significant 
economic impact upon a substantial number of small entities, as that 
term is defined in the RFA. The Commission will send a copy of this 
MO&O, including a copy of this certification, in a report to Congress 
pursuant to SBREFA.\4\ In addition, the MO&O and this certification 
will be sent to the Chief Counsel for Advocacy of the Small Business 
Administration, and will be published in the Federal Register.\5\
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    \4\ 5 U.S.C. 801(a)(1)(A).
    \5\ 5 U.S.C. 605(b).
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V. Ordering Clauses

    Accordingly, pursuant to the authority of section 4(i) of the 
Communications Act of 1934, as amended, 47 U.S.C. 154(i), incumbent 
wide-area 800 MHz SMR licensees eligible for relief as described herein 
must comply with the terms of their extended implementation 
authorizations or apply the alternative construction requirements 
described herein.
    Incumbent wide-area 800 MHz SMR licensees eligible for relief as 
described herein must certify in a filing with the Wireless 
Telecommunications Bureau their compliance with the construction 
requirements as described herein within the later of fifteen days after 
the licensee's applicable construction deadline or December 11, 2000.
    The Commission's Consumer Information Bureau, the Reference 
Information Center, SHALL SEND a copy of this MO&O, including the Final 
Regulatory Flexibility Certification, to the Chief Counsel for Advocacy 
of the Small Business Administration.

Federal Communications Commission.
Magalie Roman Salas,
Secretary.
[FR Doc. 00-25387 Filed 10-10-00; 8:45 am]
BILLING CODE 6712-01-P